The Constitution
Venn Diagram of powers between national and state government?
See Table 3.2 in Kernell, et al.
10th Amendment difficulty?
Commerce clause and elastic clause
Tradeoff with matching grants?
Easier to spend, harder to cut back when faced with deficits.
Crossover sanction?
Drinking age tied to highway funding, curriculum requirements (provisions for students with learning differences, e.g.) tied to school construction funding and/or teacher training
“New” federalism?
Block grants (fixed amounts given to states to use as they see fit for policy goal)
Devolution (formally delegating powers to states)
Challenges for legal marijuana industry?
No access to banking, no interstate commerce, no shipping across federal waters
Finishing up our constitutional convention, then federalism
Ok, let’s unpack that…
Federalism is a form of government that delegates sovereign power across multiple units.
Over/under: how many governments are there in the U.S.?
As of 2017…
From last week…
Federalism is a “bargain between prospective national leaders and officials of constituent governments for the purpose of aggregating territory, the better to lay taxes and raise armies.” - Riker (1964)
National leaders offer the bargain to expand their territory because they can’t do it on their own.
Constituent governments accept bargain because they need protection or desire strength that they can’t obtain on their own.
For Riker, formally, it is federalism if…
For Riker, no guarantee of relationship between federalism and freedom. Soviet Union met these criteria in a one-party state.
Practical reality of the time: no alternate universe where Constitution sets up unitary government
Under federalism, some powers are…
National government can…
National government can’t…
State government can…
State government can’t…
Full faith and credit clause: states have to respect each others’ laws and judgments.
My marriage in Virginia is recognized in North Carolina.
Privileges and immunities clause: visiting U.S. citizens have same rights as residents.
You can buy the fun fireworks in South Carolina. For now, you can still drive to Virginia to get an abortion.
Chartered and dissolved by states, not mini-states. Codified by “Dillon’s Rule” in 1868.
States can pass laws that set local policy.
Over/under: what percent of world governments have federal systems?
It’s not uncommon. Australia, Canada, and Germany have federal systems.
But ~80% of world governments (incl. Israel, France, Japan, and Sweden) have unitary systems.
Confederations are very rare these days.
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”
Don’t sleep on the Commerce Clause!
Over time, contestation and interpretation has moved us from dual federalism to cooperative federalism.
Issue: Georgia’s debt for Revolutionary War goods owed to out-of-state individual
Holding: Citizens of one state can sue another state in federal court
But! Reversed by 11th Amendment. Upshot: affirmation of state power.
Issue: Maryland’s attempt to tax the Baltimore branch of the Second National Bank
Holding: Federal government can set up a bank, states can’t tax its branches
Upshot: Affirms national supremacy, less state power
Issue: State-granted monopoly on navigation of interstate waterways within state boundaries
Holding: State can’t interfere with federal regulation of interstate commerce
Upshot: Clarifies and extends commerce clause (to navigation), less state power
Issue: City construction reduced deep waters in harbor, damaging wharf owner’s profits. Won damages in civil court, reversed by state court.
Holding: 5th Amendment property protections don’t extend to states
Upshot: Clarifies “dual federalism,” affirms state power.
Background: Missouri Compromise of 1820:
Issue: Does residence in free states/territories under the Missouri Compromise of 1820 grant freedom in slave states?
Holding:
Upshots:
Widely considered the worst Supreme Court ruling
Civil War fought over one very specific state right.
Afterward, we get the 13th-15th Amendments in quick succession.
14th, in particular, has big implications for federalism:
“Before the first Bull Run we generally said ‘the United States are’—are a Confederacy, for instance; after Appomattox we learned to say ‘the United States is’—is a Nation, for instance. The war settled permanently the question of grammar, and all that that implies—behind the sentiment was the syntax…Whatever we may have thought once, however we may have felt once, it is now seen to be better for us all to say ‘the United States is’—is a Nation.” - Washington Post editorial board, 1887
Lee, Melissa, Nan Zhang, and Tillman Herschenroder. 2023. “From Pluribus to Unum? The Civil War and Imagined Sovereignty in Nineteenth-Century America.” American Political Science Review FirstView 1-17.
Frymer’s argument(s) for how land use policy helped alleviate/suppress racial issues?
New states incorporated as either slave or free; incorporation, removal, or non-expansion as policy options.
Why does the US historical case offer an “alternate model of state authority”?
Conventional accounts highlight institutional/military capacity. In US, land policy allowed for expansion despite relatively decentralized institutions and weak military.
Two (of four) ways that the costs/benefits of federalism are unequally distributed?
Civil War is a big turning point
Courts re-establish some state power in late/post Reconstruction:
But also:
Issue: Can Oklahoma use licensing power to grant a monopoly in ice sales?
Holding: No, this violates 14th Amendment due process
Upshot: erodes dual federalism; Brandeis “laboratories of democracy” dissent
Interrelated and cascading economic crises (financial, industrial, agricultural)
Presidents Coolidge and Hoover resisted national response
Roosevelt / New Deal reforms dramatically expanded federal government’s role in economy (and, by extension, power over states)
Elements of New Deal consistently struck down by Courts, prompting court-packing threat
This will come up again
Industrialization means less commerce stays within-state
National crises (wars, Great Depression, COVID-19)
Transition to cooperative (or “picket fence”) federalism
Bianco, William, and David Canon. 2023. American Politics Today, 8th Edition. W.W. Norton.
National and state governments working in overlapping policy areas
National government uses variety of incentives to influence state policy
Examples:
Examples:
2010: Affordable Care Act (“Obamacare”)
Categorical grants to states to expand Medicaid
Supreme Court: can’t force states to take the money
Tiebout (1956): Communities offer different baskets of goods (public services) at different prices (taxes), people sort efficiently based on their preferences.
Some (not all) key assumptions:
All models are wrong, but some are useful.
“Crucial to understanding federalism in modern day America is the concept of mobility, or ‘the ability to vote with your feet.’ If you don’t support the death penalty and citizens packing a pistol — don’t come to Texas. If you don’t like medicinal marijuana and gay marriage, don’t move to California.”
Grumbach and Michener raise some objections. What do we think?
Hearkening back to states as “laboratories of democracy”
Consider: Delaware and “Delaware corporations” – business friendly…
Ohio against the country
Negative externalities / issues with public goods provision:
Monogan III, James, David Konisky, and Neal Woods. 2017. “Gone with the Wind: Federalism and the Strategic Location of Air Polluters.” American Journal of Political Science 61(2): 257-270.
Race to the bottom:
State governments vary wildly in how professionalized they are.
All states compare notes. Some states plagiarize.
Jansa, Joshua, Eric Hansen, and Virginia Gray. 2019. “Copy and Paste Lawmaking: Legislative Professionalism and Policy Reinvention in the States.” American Politics Research 47(4): 739–767.
State policy as a market leader
Individuals/groups with resources to forum shop and vote with their feet.
Interests without national power. This can cut both ways.
How powerful is federalism as an ideal in the United States?
Given trends in nationalization and polarization, how distinct are states these days?
Distinct communities, or differentially-weighted baskets of Democrats and Republicans?